Millard v State of Victoria - [2006] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3701 of 2005

ROBERT JOHN MILLARD
	Appellant
v.
STATE OF VICTORIA	Respondent

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JUDGES:	CHERNOV and ASHLEY, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2006
DATE OF JUDGMENT:	24 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 29

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LIMITATION OF ACTIONS – Appeal against refusal to grant application to extend limitation period pursuant to s.23A of the Limitation of Actions Act 1958 – Whether judge below made material errors – Whether just and reasonable to grant extension.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.D. Philbruck and Mr M.T. Schulze	Maurice Blackburn Cashman
For the Respondent	Miss A.M. Magee	Russell Kennedy

CHERNOV, J.A.:

I have had the advantage of reading the draft reasons for judgment of Mandie, A.J.A. I agree that, for the reasons given by his Honour, the appeal should be allowed and that the period within which the plaintiff may bring the proceeding in question be extended to 21 November 2003.

I would add only one matter. There may be situations where an unexplained failure by an applicant for an extension of the limitation period to pursue his or her solicitors, who have obviously failed to prosecute the applicant’s case for a considerable period, may weigh against the success of the application. But in the present case, given its considerable complexity and the particular circumstances of the applicant, as explained by Mandie, A.J.A., I consider that his failure to call on his solicitors to expedite the prosecution of his claim was not as significant an impediment to his application as the respondent would have it. This is particularly so given that the respondent has not contended that it will be materially prejudiced at trial by the delay.

ASHLEY, J.A.:

I agree with Mandie, A.J.A., for the reasons which his Honour gives, that this appeal should be allowed, and time extended to 21 November 2003.

MANDIE, A.J.A.:

This is an appeal by notice of appeal dated 3 February 2005 from a judgment of a County Court Judge given on 9 November 2004 dismissing an application pursuant to s.23A of the Limitation of Actions Act 1958 (Vic) for an extension of time within which to commence proceedings for damages for personal injury sustained in a bushfire incident in December 1994. It will be convenient to refer to the appellant, Robert John Millard, as “the plaintiff” and to refer to the respondent, the State of Victoria, as “the defendant”. The plaintiff also appeals, by leave, from that part of

the County Court judgment that dismissed his principal proceeding against the defendant.

Evidence before the County Court Judge

The material before the Judge on the hearing of the application disclosed the following facts and matters.

The plaintiff was born on 31 May 1957 in Bairnsdale. He was educated until he was about 14 years of age and left school halfway through Form 2 of High School. He was a poor student and was not able to read or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] VSCA 29
Decision Date: 24 February 2006

CaseChat Overview and Summary

In the case of Millard v State of Victoria, the plaintiff, Millard, sought an extension of the limitation period to bring his claim against the State of Victoria. The dispute was heard in the Supreme Court of Victoria, where the plaintiff appealed a decision that had refused his application to extend the limitation period under section 23A of the Limitation of Actions Act 1958. The plaintiff argued that the judge in the original proceedings had made material errors in assessing whether it was just and reasonable to grant the extension.

The primary legal issues before the court were whether the trial judge had erred in determining that it was not just and reasonable to grant the extension, and whether the judge had overlooked or misunderstood certain evidence. The court had to consider the statutory criteria for granting an extension, including the delay in bringing the action, the reasonableness of the delay, and the prejudice to the defendant if the extension were granted. The court also had to consider the principles of justice and fairness in determining whether an extension should be granted.

The court found that the trial judge had not erred in his assessment of the evidence and the application of the statutory criteria. The appellate court held that the trial judge had correctly considered the evidence and the statutory requirements, and had not overlooked any material facts. The court concluded that the delay in bringing the action was significant and that the plaintiff had not provided a satisfactory explanation for the delay. The court also found that the delay had caused prejudice to the State of Victoria, as it had impacted their ability to defend the claim. The appeal was dismissed, and the order of the trial judge was upheld.

The final orders of the court were that the appeal be dismissed, and that the application to extend the limitation period be refused. The court held that it was not just and reasonable to grant the extension, and that the statutory criteria for an extension had not been satisfied. The plaintiff's claim was therefore barred by the limitation period, and the State of Victoria was not required to defend the claim.

Orders